Leaving Canada by the end of Authorized Stay

People applying to visit, study, or work in Canada have to show that they intend to be bona fide temporary residents that will leave the country once their visa / study permit / work permit has expired. This is pursuant to s. 179(b) of the Immigration and Refugee Protection Regulations, which states that:

Issuance

179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national

(b) will leave Canada by the end of the period authorized for their stay under Division 2;

In determining whether an applicant has met the s. 179 requirement, a visa officer must consider numerous factors, including financial and personal ties to the applicant’s country of origin, past immigration attempts, overstaying in other countries, and any criminal past.

Indeed, anyone who has ever seen a temporary resident visa refusal is probably familiar with the following “check-list.”

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The following are examples of how IRPR s. 179 may be applied to individual applications. They are scenarios that IRCC provides visa officers for the purposes of training.

CASE LAW

Your Travel History

From Momi v. Canada, 2013 FC 162:

While the applicant’s compliance with Australian immigration rules is not evidence directly related to the matter of complying with periods of authorization in Canada, it does indicate in my estimation that the applicant has respected immigration policy in the past, and there is no further evidence to the contrary.

As well, while previous travel history may be a good indicator as to the likelihood of compliance to immigration laws, an absence of travel is at best a neutral indicator, as the Federal Court found in Momi v Canada (Minister of Citizenship & Immigration), 2013 FC 162.

Length of Proposed Stay

From Momi v. Canada, 2013 FC 162:

 having a “permanent job” in Canada does not allow for an inference that the applicant will break the law and remain in this country past the expiry of the work permit. There is no evidence on the record that the applicant would have ties in Canada such that he would be tempted to stay for that reason alone. We should guard against connecting temporary residence and becoming a permanent resident (section 22 of the Act).

Your Immigration Status

From Momi v. Canada, 2013 FC 162:

The fact that the applicant seeks to obtain the appropriate visa from Canada because his immigration situation in Australia will become precarious would in my view militate in favour of considering the applicant as law abiding. As this Court has held in the past, previous immigration encounters are good indicators of an applicant’s likelihood of future compliance (see Calaunan v Canada (Minister of Citizenship and Immigration), 2011 FC 1494 at para 28 and Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186).

I find it difficult to understand how the fact that the applicant appears to have stayed in Australia since 2009 is sufficient to conclude that if he were awarded a temporary work permit, he would not return to India at its expiration. At best, not wishing to return to India following a stint in Australia by seeking to obtain a temporary work visa in Canada should be considered as neutral as to whether or not the applicant “will leave Canada by the end of the period authorized for their stay

I am struck by the following passage taken from the decision of Justice Mainville, then of this Court, inGu v Canada (Minister of Citizenship and Immigration), 2010 FC 522:

[21]     Second, the other fact which the officer draws upon to conclude that the applicant will not leave Canada at the end of the study period is her continued presence in Canada since March 2002 with either work or study permits. This is unreasonable. A foreign national who has remained in Canada under validly issued work or study permits should not be penalized for having followed the immigration legislation of this country. The simple fact the applicant has legally remained in Canada cannot reasonably support a conclusion that she would choose to go “underground” or try to stay in Canada without authorization once her study permit expires.

Your Family Ties in Canada and in Your Country of Residence

From Tharsini v. Canada, 2012 FC 1518:

The officer concluded the applicant had only weak family ties to Sri Lanka. As there is no elaboration on this finding, one can only assume the officer concluded the ties are weak due to only a single family member being in that country. However, to judge family ties solely based on the quantity of family members is to ignore the relevant factor of the strength of the child-parent bond (see Guo v Canada (Minister of Citizenship and Immigration), 2001 FCT 1353 at paragraph 15, [2001] FCJ No 1851). The officer may have had legitimate reasons for doubting the strength of that bond in this case. The record is silent, making it very difficult for this Court to see this finding as reasonable.

While the family tie was only one part of the evidence considered by the officer on the issue of intention to leave Canada, it clearly was central to that determination and I cannot discern how the officer would have decided absent that finding.

See also Shakeri v. Canada (Citizenship and Immigration).

Your Current Employment Situation

In Dhanoa v. Canada, for example, the Federal Court noted that:

The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 “for the love of money is the root of all evil.”

In Cao v. Canadaa 27-year old citizen of the People’s Republic of China who was offered a job as a cook at a Chinese restaurant in Quebec. The visa officer refused his application as he was not satisfied that the applicant was a genuine visitor who would leave Canada upon the expiry of his work permit.  The officer based this decision the applicant’s insufficient financial ties to China, his modest salary, and limited advancement opportunities in China.  Justice Martineau found the Officer’s rejection on the basis of s. 179 of the IRPR to be completely unreasonable. He noted that the rejection of the work permit application because the applicant would make more money in Canada than in China relied on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out.

Addressing Newfoundland v. Nurses

The Supreme Court of Canada decision in Newfoundland Nurses has greatly complicated matters.  By getting rid of the “adequacy of reasons” test as a stand-alone ground for judicial review, the Supreme Court of Canada has in effect signalled to Citizenship and Immigration Canada that it can refuse decisions based on boilerplate, minimal reasons, knowing that reviewing judges must consider whether the decision was reasonable based on the record as a whole.

Justice Zinn has provided some guidance in how to approach such cases in Agidi v. Canada, 2013 FC 691, where he wrote:

The applicant in the written submissions argues that the officer breached the duty of fairness by failing to provide adequate reasons for his decision, and also that the decision is unreasonable.  The respondent is quick to point out, correctly, that “adequacy of reasons” is no longer a stand-alone ground of judicial review, in light of the Supreme Court’s decision inNewfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador Nurses’ Union] at para 14.  I agree; however, the decision rendered must still be reasonable in terms of “the existence of justification, transparency and intelligibility within the decision-making process [and] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law:”  Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.

In the absence of any real reasons in the CTR as to why the officer reached his conclusion that the applicant had not satisfied him that the applicant would not leave Canada at the end of her intended three week stay, this decision is unreasonable and must be set aside.  Although this Court should first look to supplement before subverting the officer’s reasons and may look to the record to do so (Newfoundland and Labrador Nurses’ Union, above, at para 12), a review of the record almost exclusively reveals factors – those canvassed immediately above – that strongly support the opposite conclusion to that reached by the officer; namely she has been invited by a Canadian friend to visit and holiday with her for three weeks (and the friend provides an affidavit to the effect), and she leaves behind in Nigeria a job, a husband, two minor children, and property.  How on those facts can it reasonably be said that she has failed to establish on the balance of probabilities that she will leave Canada at the conclusion of her visit?

Including Declarations

When submitting visa applications, it may be helpful to include a declaration from the applicant stating that he/she understands the nature of temporary entry, and that he/she will not overstay. As the Federal Court noted in Zhang v. Canada (Citizenship and Immigration), 2014 FC 499:

It is apparent that the visa officer has also failed to consider any other reasons raised by the applicant to support her claim that she would return to the PRC. For example, her study plan states that her fiancé lives in China, he owns his own business there and he has purchased an apartment in her name. The applicant’s declaration explains that her fiancé is not interested in living abroad but that her study “is also one part of the preparation for our future career; therefore I will not stay in Canada for long term” (see para VI of the declaration, Applicant’s Record [AR] at 28). The declaration also states that the applicant plans to have a family in China and to take care of her parents there and that she understands the repercussions of failing to leave Canada (at paras VII and IX, AR at 28-29). As stated in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 941 at para 13 [Cao], “[t]he decision to submit the applicant’s declaration is not a banal gesture. The declaration is a clear statement that the applicant understand the consequences of overstaying his welcome in Canada, and for this reason, it will not happen.”

As well, the fact that a statement may be self serving does not mean that an officer can disregard it, as an applicant will necessarily produce evidence that is beneficial to their case. .  This has been affirmed in several cases, including LOTM v Canada (Minister of Citizenship & Immigration), 2013 FC 957, at para.27-29, citing SMD v Canada (Minister of Citizenship & Immigration), 2010 FC 319, Ugalde v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 458, and Ahmed v Canada (Minister of Citizenship & Immigration), 2004 FC 226), and Singh v. Canada (Citizenship and Immigration), 2015 FC 1210.

Purpose of Visit

In Agidi v Canada (Minister of Citizenship and Immigration, 2013 FC 691, the Federal Court found that a (compelling) reason to visit Canada is not required in order to issue a TRV.

In Guillermo v. Canada (Citizenship and Immigration), 2017 FC 61, the Federal Court affirmed that visits to close family members are an acceptable purpose of visit.

Non-Personal Factors

Unfortunately, there may be other factors that are not relevant to the individual that can impact whether a visa will be refused. As demonstrated in the image below, a visa officer training guide states that borderline cases from Liaoning, Guangdong, Hebei, Fujian, and Henan would likely be refused, simply because the applicants are from areas of high risk. While one hopes that this is not the case, it is difficult to completely discard training manuals which contain instructions like this.

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